w w w . L a w y e r S e r v i c e s . i n



Thomas George & Others v/s State of Kerala, Represented by The Chief Secretary, Thiruvananthapuram & Others


Company & Directors' Information:- A V THOMAS AND CO LTD [Active] CIN = U51109KL1935PLC000024

Company & Directors' Information:- J THOMAS & CO PVT LTD [Active] CIN = U51909WB1947PTC015276

Company & Directors' Information:- THOMAS AND COMPANY PRIVATE LIMITED [Active] CIN = U45201DL1997PTC085284

Company & Directors' Information:- A V GEORGE AND CO PRIVATE LTD [Active] CIN = U51109KL1937PTC000027

Company & Directors' Information:- A V GEORGE AND CO INDIA PVT LTD [Active] CIN = U74999KL1946PTC001390

    WP(C). No. 12747 of 2020 (P)

    Decided On, 30 June 2020

    At, High Court of Kerala

    By, THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS

    For the Petitioners: K. Shaj, Advocate. For the Respondents: K.J. Manu Raj, Govt. Pleader.



Judgment Text

1. The case set up in the above Writ Petition (Civil) is as follows:-That the paddy field was converted into garden land pursuant to Ext.P1 KLU order issued on 24.03.1997. Ext.P3 building permit was issued on 09.09.2013 which was subsequently renewed on 27.04.2018. Now, Exts.P5 and P7 notices were issued by the second respondent RDO insisting on payment of fees as per Section 27A of Act 28 of 2008. As the petitioners were hard-pressed for money for completion of building and for numbering the buildings, they paid the money covered by Ext.P5 notice. As per Ext.P7 notice, the petitioners have to remit nearly Rs.30 Lakhs. That the petitioners have availed huge loan from the KFC for construction of the building and now they are availing enhanced loan. But due to the pendency of Ext.P7 notice and the insistence of the revenue authorities to remit the amount covered by Ext.P7 notice, the petitioners are not able to take enhanced loan from the KFC. Any more delay will ruin the commercial business of the petitioners. Hence, the petitioners seek quashing of Exts.P5 and P7 notices, refund of the money paid as per Ext.P5 notice and a declaration that the petitioners are not liable to pay any amount as per Exts.P5 and P7 notices in the light to the principles laid down in Geo Peter v. Revenue Divisional Officer, Moovattupuzha reported in 2019(4) KHC 400 and many other cases of this Court.It is in the light of the above averments and contentions, that the petitioners have filed the aforecaptioned writ petition (civil) with the following prayers;“A) to call for the records leading to the issuance of Exhibits P5 and P7 notices and to quash the same;B) to declare that the petitioners are not liable to pay any amount as fees as per the provisions of Section 27A of the Kerala Conservation of Paddy Land and Wet Land Act ,2008 as the land was converted as a garden land in 1998 pursuant to Ext.P1 order issued under Clause 6 of the KLU Order in the year 1997 and since the building permit application of the petitioners is of the year 2013, which are prior to 30/12/2017, the date from which the Amendment Act of 2018 is made applicable.C) to issue a writ in the nature of mandamus or any other appropriate writ, direction or order commanding the first respondent to return the amount of Rs.3,16,164/- remitted as per Ext.P5 notice to the petitioners;D) to pass such other writ order or direction that this Hon'ble Court may deem fit and proper in the facts and circumstances of the case; andE) to award the cost of this petition.”2. Heard Sri.K.Shaj, the learned counsel appearing for the petitioners and Sri.K.J.Manu Raj, the learned Government Pleader appearing for the respondents.3. It is the case of the petitioners that the subject properties concerned, though continue to be described as “nilam/paddy land” in the Basic Tax Register (BTR), have been converted as “garden land/purayidom” much prior to 12.08.2008 (the date of coming into force of the Kerala Conservation of Paddy Land and Wet land Act, 2008). Further that the predecessor of the petitioners, who previously owned the subject properties, had filed the requisite application under Rule 6(2) of the Kerala Land Utilisation Order on 16.12.1996 before the 2nd respondent RDO for permission for change of user of the land under that statutory provision. Further that the 2nd respondent RDO has thereafter considered the said application dated 16.12.1996 and has issued Ext.P1 proceedings dated 24.03.1997 granting statutory permission under Rule 6(2) of the KLU Order for change of user of the land for construction of industrial unit. Ext.P1 proceedings No.B3. 198/97/B3/K.DIS dated 24.03.1997 issued by the 2nd respondent RDO reads as follows:“No.B3.198/97/B3/K.Dis. Dated: 24-3-1997Sub:- KLU order 1967 - Conversion of wet land into dry land in Kozhancherry Village, Kochancherry Taluk sanction accorded orders issued.Read:- 1. Application dated, 16.12.1996 from Shri.Varghese K mathew, Kanjiramnilkunnathil, ThekkemalaP.O , Kozhencherry Village.2. Report No. H3.19235/95 dated, 7.1.97 of Tahsildar, Kozhencherry.3. Report No. T.9.(6) 2423/97 dated, 17.3.97 of Principal Agricultural Officer, Pathanamthitta.….............Sri,. Varghese K. Mathew, Kanjiramnilkunnathil Thekkemala P.O, Kozhencherry Taluk, Kozhencherry Village has put in an application as per reference 1st cited seeking permission to convert 66 cents of wet land comprised in sy.No. 285/34 of Kozhencherry Village which is in the possession and enjoyment of the applicant into dry land under sec. 3 of the KLU order 1967 for constructing and industrial unit under SSI scheme.The Tahsildar, Kozhencherry who has conducted site inspection and enquiry has reported that the purpose of the applicant is bonafide and the land in question is in the possession and enjoyment of the applicant as per I.P Account No. 6988 of Kozhencherry village. He has also reported that land in question is not fit for paddy cultivation and that it was not used for paddy cultivation for years back. The conversion of this land would not affect the paddy cultivation in the neighbouring paddy fields.The Principal Agricultural Officer, Pathanamthitta as per reference 3rd cited has reported that the said land was not being used for paddy cultivation for the last 8-10 years due to the lack of irrigation facilities and hence it is not fit for paddy cultivation.I have inspected the site and found that the said land is not fit for paddy cultivation. It means that it was not being used for paddy cultivation for year together.In the circumstances stated above sanction is hereby accorded to Sri. Varghese K.Mathew Kanjiramnilkunnathl Veedu, Thekkemala.P.O, Kozhencherry Taluk under Clause 6 of KLU Order 1967 to convert an extent of 45 cents (forty five cents only) of wet land comprised in sy.No. 285/34 of Kozhencherry Village, Kozhencherry Taluk into dry land for constructing an industrial unit under SSI Scheme.”4. Thereafter the petitioners had approached the local authority concerned for grant of building permit and had obtained building permit in that regard to construct building in the said property, but their application for renewal of the building permit was rejected by local body concerned (Kozhencherry Grama Panchayath) on the ground that Ext.P1 proceedings herein permits only change of user of the land for constructing an industrial unit and that therefore, it cannot be used for construction of a commercial building as proposed by the petitioners, who are the successors in interest of the beneficiary of Ext.P1 order. The said proceedings of the local authority concerned was challenged by the petitioners by filing W.P.(C) No.7068/2018 before this Court. This Court, as per Ext.P2 judgment dated 06.04.2018, has finally disposed of W.P.(C) No.7068/2018, holding that the present proceedings as per Ext.P1 herein (Ext.P4 therein) is an order passed under Rule 6(2) of the Kerala Land Utilisation Order, 1967 and therefore it is an order granting such statutory permission for conversion of the subject property from agricultural purposes to any non agricultural use in the light of the well settled position in that regard in view of the various rulings of this Court including the judgment of the Division Bench of this Court in the case Shahul Hameed v. Principal Secretary, Local Self Government Department [2018 (1) KLT 1008(DB)]. Accordingly, this Court held that the impugned order passed by the respondent Panchayath therein, refusing renewal of the building permit is illegal and ultravires and has accordingly quashed the impugned rejection order and directed orders to be passed afresh on the application for renewal of the building permit in the light of the said judgment. Ext.P2 judgment rendered by this Court on 06.04.2018 in W.P.(C) No.7068/2018 reads as follows:“The petitioner has approached this Court aggrieved by Ext.P3 order of the Panchayath, whereby an application for renewal of the building permit was rejected by the respondent Panchayat stating that Ext.P4 order passed in respect of the same land indicated that the conversion was permitted only for industrial use and not for a commercial use that is now proposed by the petitioner, who is the successor in interest of the land.2. I have heard the learned counsel appearing for the petitioner and also the learned Standing Counsel appearing for the respondent Panchayat.On a consideration of the facts and circumstances of the case as also the submissions made across the Bar, I find that inasmuch as Ext.P4 order passed under Clause 6(2) of the Kerala Land Utilisation Order indicates that the conversion was from agricultural to nonagricultural use, the decision of the Division Bench of this Court in Shahul Hameed v. Principal Secretary, Local Self Government [2018(1) KLT 1008] is authority for the proposition that once there is a conversion of land for non-agricultural use, there is no further permission required for other non-agricultural uses in respect of the same land. Accordingly, I find that Ext.P3 order of the respondent Panchayat cannot be legally sustained. I therefore quash Ext.P3 and direct the respondent Panchayat to consider the application submitted by the petitioner for renewal of building permit, afresh, in the light of the observations in this judgment within a period of three weeks from the date of receipt of a copy of this judgment. The petitioner shall produce a copy of the writ petition along with a copy of this judgment before the respondent Panchayat, for further action.”5. It appears that the subject property has been included in the Draft Data Bank as “converted land” prior to the 2008 Act. That thereupon the petitioners filed requisite application before the Local Level Monitoring Committee concerned for getting orders for exclusion of the said property from the Land Data Bank. Thereupon, the petitioners had moved requisite application before the LLMC for getting the subject property removed from the Draft Data Bank/data bank. Since no action was being taken thereon, the petitioners were constrained to approach this Court by filing W.P.(C) No.29447/2018. This Court as per Ext.P4 judgment dated 12.09.2018 has disposed of W.P.(C) No.29447/2018 by directing that the respondent Local Level Monitoring Committee should consider the said application dated 31.07.2018 (Ext.P7 therein) for exclusion of the subject property from the Land Data Bank and to pass orders thereon within a period of 4 months from the date of receipt of a copy of the judgment. However, as regards the request of the petitioners for consequential directions for alteration of the BTR entries, this Court held that, in the light of the dictum laid down by the Division Bench of this Court in the case in LLMC, Kizhakkambalam Grama Panchayath v. Mariumma [2015 (2) KLT 516 (DB)], Thahasildar, Thodupuzha Taluk v. Renjith [2020 (1) KHC 865 (DB) etc. additional entries to the BTR are possible to the existing entries therein and that in the light of Sec.27C of the 2008 Act, the petitioners may seek for incorporating an additional entry in the BTR as envisaged in Sec.6A of the Land Tax Act, etc.6. Thereafter, the 2nd respondent RDO has passed Ext.P5 order dated 18.10.2019 that prior to securing additional entries in the BTR, the petitioners will have to pay the amounts as conceived as per the amended provisions of the 2008 Act including Sec.27A thereof and the amended Rules frame thereunder and has directed the petitioners to pay the amounts mentioned therein. It appears that the petitioners have paid the said amount, as can be seen from Ext.P6 receipt. Thereafter the 2nd respondent RDO has passed Ext.P7 order dated 28.10.2019 that the petitioners will have to pay an additional amount of Rs.29,10,700/- for the building already constructed in the subject property in terms of the provisions contained in Sec.27A and the Rules frame thereunder, etc.7. Being aggrieved by Exts.P5 and P7, the petitioners challenged the same by filing W.P.(C)No.29417/2019 before this Court. This Court as per P8 judgment dated 04.12.2019 disposed of W.P.(C) No.29417/2019 after taking in to account the submission of the petitioners that since the petitioners have already secured necessary statutory permission under Rule 6(2) of the KLU Order in respect of the very same subject property as per Ext.P1 proceedings, then there is no necessity to adhere to the amended provisions of the 2008 Act including Sec.27A and 27C and that the proper procedure is to straightaway approach the 3rd respondent Tahsildar under Sec.6A of the Land Tax Act etc. and had therefore sought permission of this Court to withdraw the said W.P.(C) with liberty to seek modification or review of Ext.P4 judgment to that limited extent.8. It is by now well settled by a series of rulings of this Court as in Geo Peter v. Revenue Divisional Officer [2019(3) KLT 838], Renji K.Paul v. Revenue Divisional Officer [2019 (2) KLT 262] etc, where the subject property has been converted by 2008 Act and where the requisite application under Section 6 (2) of the K.L.U Order has been filed by the property holder before 30.12.2017( date of coming into force of the amended provisions of 2008 Act including the introduction of Sec.27A thereof). None of the adverse provisions or rigorous provisions contained in the amended provisions of the 2008 Act including Section 27A thereof could be pressed in to service against such a property holder and such case should be considered only in terms of the provisions contained in Rule 6(2) of the K.L.U order.9. Further it has also been held by the judgments of the Division Bench of this Court in cases as in LLMC, Kizhakkambalam Grama Panchayath v. Mariumma [2015 (2) KLT 516 (DB)] Thahasildar, Thodupuzha Taluk v. Renjith [2020 (1) KHC 865 (DB) etc. that in such cases, where Rule 6(2) application of the K.L.U order has been filed before the cut off date and where such orders have been obtained , then the property holder is entitled to maintain an application under Section 6(A) of the Kerala Land Tax Act for reassessment of the subject property to make additional entries in the B.T.R to show the said property as garden land/purayidom before the earlier B.T.R entries as Nilam/paddy land. It has been held by the Division Bench in these judgments more particularly in Mariumma's case(supra) that once an order is passed under Rule 6(2) of the K.L.U order, granting permission for conversion, then the earlier B.T.R entries becomes superfluous and otiose and the respondent Revenue Officer concerned is under the obligation to subject the property for reassessment in order to make additional entries in the B.T.R to show the property as purayidom or garden land, so that higher land tax could be collected.10. In the instant case, the specific case of the petitioners is that their predecessor in interest has already secured necessary statutory permission under Rule 6(2) of the KLU Order, 1967 for change of user of the land for any non agricultural purposes as per Ext.P1 proceedings dated 24.03.1997 issued by none other than the 2nd respondent RDO under the said statutory provision, and that too, on an application filed as early as on 16.12.1996, which is referred to as first paper in Ext.P1. Further, this Court has already conclusively held in Ext.P2 judgment that Ext.P1 proceedings herein is a statutory order passed by the 2nd respondent RDO under Rule 6(2) of the KLU Order granting permission for change of user of the subject property for any non agricultural purposes including for construction of any type of building including commercial building, etc. Ext.P1 proceedings has become final and conclusive. So also, the directions and orders in Ext.P2 judgment have also become final and conclusive inter partes. Even in a case where Rule 6(2) application is filed before the cut of date of 30.12.2017, then notwithstanding the fact that orders may not have been passed on such application before the cut of date, still this Court has held that such a party is legally entitled to get such an application filed prior to the cut of date of 30.12.2017 considered strictly in accordance with the provisions contained in Rule 6(2) of the KLU Order and in such a case the party cannot be mulcted to face the rigorous procedure and to pay the higher amounts as conceived as per the amended provisions of the 2008 Act including Sec.27A thereof and the amended Rules frame thereunder. In such a case, this Court has also held consistently that where the party gets orders or permission under Rule 6(2) of the KLU Order, then he is equally entitled to maintain an application under Sec. 6A of the Kerala Land Tax Act to get the subject property re-assessed in terms of that statutory provision to secure additional entries in the BTR to show correctly the change nature of the land as garden land/purayidom instead of the earlier BTR entries as nilam/paddy land and without such a party having to pay any amounts as conceived as per the amended provisions of the 2008 Act and the amended Rules frame thereunder. The case of the petitioners herein would certainly stand on a higher pedestal for the simple reason that the predecessor in interest of the petitioners has already filed application under Rule 6(2) of the KLU Order as early as on 16.12.1996 (reference No.1 of Ext.P1) and Ext.P1 statutory permission under Rule 6(2) of the KLU Order has also been accorded by the 2nd respondent as early as on 24.03.1997. Therefore, in the instant case both the application as well as the statutory order has been effected long prior to 12.08.2008 (date of coming into force of the 2008 Act). As already conclusively held by this Court in Ext.P2 judgment, which is an inter partes judgment between the very same parties, Ext.P1 proceedings is an unconditional order granting permission under Rule 6(2) of the KLU Order to enable the petitioners to use the subject properties for any non agricultural purposes including for construction of any type of building including commercial building, and this was so held and declared in the light of the dictum laid down by this Court in a catena of decisions including the one rendered by the Division Bench of this Court in Shahul Hameed's case(supra) 2018(1) KLT 1008(DB). In such a case, it was the bounden duty of the competent revenue authorities concerned like the 3rd respondent Tahsildar to ensure that the subject property covered by Ext.P1 is reassessed in terms of Sec.6A of the Kerala Land Tax Act to correctly show the changed nature of the land as “garden land/purayidom” instead of the earlier BTR entries as “nilam/paddy land” so that higher tax for such garden land/purayidom is collected from the land holder concerned in terms of the mandate contained in the provisions of the Kerala Land Tax Act and the Kerala Land Tax Rules. There does not appear to be any dispute that as per the scheme of land tax envisaged as per the Kerala Land Tax Act and the Kerala Land Tax Rules framed thereunder, the Land Tax payable in respect of a garden land/purayidom is higher than that payable for paddy land/nilam. Therefore it was the bounden statutory obligation and duty of the competent revenue officials like 3rd respondent Tahsildar to have passed such orders of re-assessment. But the fact of the matter is that neither the predecessor in interest of the petitioners nor the petitioners have immediately filed such application under Sec.6A of the Land Tax Act. Merely because the party concerned has not filed any such application under Sec.6A of the Kerala Land Tax Act, the legal position will not be altered and in a case like this, the petitioners will be legally entitled to maintain application under Sec.6A of the Kerala Land Tax Act before the 3rd Tahsildar for re-assessment of the subject property so as to secure additional entries in the BTR to correctly show the changed nature of the land and without having to pay any amounts as conceived as per the amended provisions of the 2008 Act and the amended provisions of the Rules frame thereunder, for the simple reason that the requisite application under KLU has been submitted in respect of the subject property much before the cut of date of 30.12.2017 (date of coming into force of the amended provisions of the 2008 Act). The position in that regard is declared and ordered.11. As regards the observations in Ext.P4 judgment, it is only to be noted that this Court has incidentally held therein that in view of the provisions contained in Sec. 27C of the amended provisions of the 2008 Act, it is for the petitioners to follow the said procedure. This Court has not anywhere held in Ext.P4 judgment that the petitioners will have to also adhere to the procedure under Section 27A of the 2008 Act or to pay the higher amounts conceived therein etc. Section 27C also clearly speaks about securing additional BTR entries as conceived in Section 6A of the Kerala Land Tax Act. Therefore, the said minor discrepancy in that regard cannot take away the substantive rights of the petitioners based on Ext.P1 permission under Rule 6(2) of the KLU Order as well as Ext.P2 judgment under Rule 6(2) of the KLU Order, both of which have become final and conclusive. Therefore, it is only to be held that if the subject properties covered by Exts.P5 and P7 are the same as the one covered by Ext.P1, then it is only to be held that the said impugned proceedings are illegal, ultra vires and unenforcible for the above said reasons. In that view of the matter, it is ordered that the impugned orders at Exts.P5 and P7 will stand set aside and quashed.12. Accordingly, it is ordered that the petitioners may immediately file requisite application for re-assessment of the subject property covered by Ext.P1 in terms of Section 6A of the Kerala Land Tax Act and such application may be filed before the 3rd respondent Tahsildar within ten days from the date notified for receiving a certified copy of this judgment. The petitioners may file such requisite application under Section 6A of the Kerala Land Tax Act before the 3rd respondent Tahsildar and a certified copy of the judgment should also be forwarded to the 3rd respondent along with copy of the memorandum in W.P.(C) with all the Exhibits.

Please Login To View The Full Judgment!

On receipt of the said application, the 3rd respondent Tahsildar will ascertain as to whether the subject property covered by Ext.P1 proceedings dated 24.03.1997 issued by the 2nd respondent RDO under Rule 6(2) of the KLU Order is the same as the one covered by the said application filed under Section 6A of the Kerala Land Tax Act and in case the said properties are the same, then the 3rd respondent will immediately pass orders on re-assessment of the subject property in terms of Section 6A of the Kerala Land Tax Act so as to secure additional entries in the BTR in order to correctly show the changed nature of the land as “garden land/purayidom” after affording reasonable opportunity of being heard to the petitioners through their authorised representative/counsel, if any, without any further delay, at any rate, within a period of one month from the date of production of a certified copy of the judgment and strictly in the light of the above said observations and without making the petitioners pay any amounts as conceived as per the amended provisions of the 2008 Act including Section 27A thereof and the amended Rules framed there under including Rule 12(17) thereof. This Court has quashed Exts.P5 and P7 on the premise that the subject property covered by Exts.P5 and P7 is the same as the one covered by Ext.P1 proceedings dated 24.03.1997 issued by the 2nd respondent RDO.13. All other issues are left open. The counsel for the petitioners had also sought for directions in the matter of refund of amounts, etc. Counsel for the petitioner submits that the petitioner will be advised to move Review Petition in respect of Ext.P4 judgment dated 12.09.2018 in W.P.(C) No.29447/2018 and to seek for orders in that regard with the plea that the petitioner may be permitted to withdraw Ext.P4 W.P.(C) No.29447/2018, in view of the orders in the judgment in the present W.P.(C) and that W.P.(C) No. 29447/2018 may be dismissed as withdrawn and Ext.P4 judgment may be reviewed accordingly so as to close that W.P.(C) as withdrawn in the light of this judgment and to consequently recall Ext.P4 judgment, etc. Thereafter, it is for the petitioners to pursue appropriate remedy by making such request before the 2nd respondent RDO and thereafter if they have any legally justiciable grievances, it is for them to work out their remedies in the manner known to law.With these observations and directions, the above Writ Petition (Civil) stands finally disposed of.
O R